( 1 ) THIS appeal under Sec. 30 of the Workmens Compensation act, 1923 (act for short, hereinafter) is directed against the judgment and award passed by the learned Commissioner for Workmen Compensation at jamnagar in Workman Compensation Application No. 49 of 1981.

( 2 ) THE appellant in this appeal is the original applicant, who preferred the application for compensation of Rs. 8,100. 00 alongwith claim of penalty and interest by invoking the aids of the provisions of Sec. 3 of the Act, before the Commissioner for Workmen Compensation (commissioner for short, hereinafter), at Jamnagar.

( 3 ) AS per the case of the applicant, he was serving as a driver of respondent No. I/original opponent No. 1, Khavas Shantilal Kanji and was plying his auto-rickshaw bearing registration No. GTP 734. The applicant was getting Rs. 20. 00 per day over and above Rs. 2. 00 per day towards miscellaneous expenses from his master. Thus, the applicant was working as a driver of original opponent No. 1. The accident in question occurred, on 5-1-1980. According to the case of the claimant/applicant, he was driving the said auto-rickshaw and was going on towards Street no. 11, Digvijay Plots, Jamnagar. At that time, one boy came, all of a sudden, on the road near Street No. 7 and, in order to save the said boy, the claimant took the rickshaw on the side, as a result of which, the rickshaw was over-turned and consequently the applicant sustained serious injuries on his legs. The applicant was removed to Government Irwin Hospital, at Jamnagar, where he was operated and plaster was applied on his left leg. It is also alleged by the applicant that he is unable to perform the work of a driver. The applicant contended that he sustained permanent partial disability to the extent of 25%. He, therefore, claimed Rs. 8,100. 00by way of compensation and also prayed for penalty and interest under the provisions of Sec. 4a of the Act from both the opponents. Original opponent No. 1 was the owner of the auto-rickshaw and original opponent No. 2 was the insurer of the offending auto-rickshaw. Therefore, the claimant/applicant claimed compensation from both the opponents under the provisions of Sec. 3 of the Act.

( 4 ) ORIGINAL opponent No. 1 appeared and resisted the claim petition by filing written statement, at Ex. 11. He inter alia, contended that there was no relationship of employer and employee between the claimant/applicant and himself. He contended that the applicant was not a workman within the meaning of the Act. He denied that the applicant was earning Rs. 6601- per month by way of wages. Thus, opponent No. 1, owner of the auto-rickshaw, denied the claim of the applicant totally.

( 5 ) ORIGINAL opponent No. 2, the insurer of the offending auto-rickshaw, appeared and resisted the application by filing separate written statement, at ex. 16. It also denied the liability for the payment of compensation. Opponent no. 2 also denied that there was any insurance policy in respect of the autorickshaw, no. GTP 734.

( 6 ) THE applicant led the evidence of the following witnesses : 1. Evidence of the applicant himself - Ex. 17 2. Dhansukhlal Karshandas - Ex. 22 3. Dr. Hasmukh Keshavlal, Orthopaedic Surgeon - Ex. 25 4. Devji Bhavan - Ex. 27 5. Dilavarkhan Sultan - Ex. 28 6. Jamal Hasan - Ex. 30 7. Dinesh Hargovind - Ex. 28 original opponent No. 1 relied on the evidence of the following witness : 1. Evidence of the opponent No. 1 himself - Ex. 32 the parties also relied on documentary evidence and the reference to which shall be made as and when required at an appropriate stage, hereinafter.

( 7 ) ON appreciation of the evidence on record, the learned Commissioner was pleased to dismiss the application with cost on 12-4-1982. The learned commissioner came to the conclusion that the applicant has failed to prove that he was a workman of original opponent No. 1 at the relevant point of time. It is also held by the learned Commissioner that the applicant has